Memorandum submitted by the Scottish Executive
BACKGROUND
1. The "Sewel Convention"—that
Westminster would not normally legislate with regard to devolved
matters in Scotland without the consent of the Scottish Parliament—is
an essential feature of the devolution settlement, being reflected
in the Memorandum of Understanding between the UK Government and
the Devolved Administrations, as well as in the UK Government's
Devolution Guidance Note (DGN) 10. Without some understanding
or commitment along these lines, it is difficult to see how any
system of devolution could successfully operate within a constitutional
framework incorporating a state Parliament which remains sovereign.
The Convention makes it possible for that to happen.
2. With the experience of over six years
of devolved government on which to draw, this seems an appropriate
point for reviewing the practical operation of the Convention.
In that light the Scottish Parliament's Procedures Committee recently
undertook an inquiry into the operation of the Convention; its
report led to a number of changes to the way in which the Scottish
Parliament considers giving consent. The report also made a number
of observations about matters of more direct relevance to Westminster.
Against this background, the Scottish Executive welcomes the decision
of the Scottish Affairs Committee to hold this inquiry and specifically
to consider the outcome of the Scottish Parliament's own inquiry
and innovations.
3. Fundamentally, the Executive's view—which
we were pleased to see was shared by many of the parties, academics
and commentators who submitted evidence to the Procedures Committee's
inquiry—is that as a matter of principle the Sewel Convention
has provided an important constitutional safeguard which reflects
and respects the devolution settlement and operates to the benefit
of the people of Scotland. The Executive also recognises the need
to ensure that the Convention operates effectively in practice
and has endeavoured to co-operate with the Scottish Parliament
to this end.
4. The way in which the Scottish Parliament
deals with proposals for consent under the Convention has evolved
over time, most recently and significantly since the Procedures
Committee inquiry last year. While a key point has always been
a decision by the Parliament on a motion—generally known
colloquially as a "Sewel Motion" but now, in the wake
of recent reforms, formally referred to in the Standing Orders
of the Parliament as a "Legislative Consent Motion"—the
associated process has developed. We hope it will be helpful to
explain the new procedures in a little detail and to outline the
processes within the Scottish Executive that take place before
Legislative Consent Motions reach the Parliament.
POLICY AGREEMENT
5. There has been a variety of circumstances
in which the Scottish Ministers have invited the Scottish Parliament
to approve a motion consenting to legislation at Westminster,
including:
— where it would be more effective
to legislate in a single piece of legislation in order to put
in place a single UK-wide or GB-wide statutory regime;
— where a complex inter-relationship
between reserved and devolved matters can most effectively and
efficiently be dealt with in a single piece of legislation;
— where the UK Parliament is considering
legislation for England and Wales which could beneficially also
be brought into effect in Scotland, but sufficient Parliamentary
time is not readily available at Holyrood without setting aside
our own legislative plans and priorities;
— where the provisions in question,
although they relate to devolved matters, are minor or technical
and entirely uncontroversial; and
— where the powers of the Scottish
Parliament and/or Scottish Ministers would be enhanced in a manner
that would be outwith the competence of the Scottish Parliament—for
example, conferring powers on the Scottish Ministers in relation
to reserved matters.
6. It is important to underscore that the
Convention has not been used to consent to the transfer of any
part of the Scottish Parliament's legislative competence back
to Westminster. As regards devolved matters, the Scottish Parliament
has retained the right to legislate on the same issue itself on
another occasion if it wishes to do so, and to amend or repeal
provisions on devolved matters which have been enacted at Westminster.
There is, therefore, no question of the Convention operating in
a way which somehow undermines the devolution settlement. On the
contrary, it allows Scotland to have the best of both legislative
worlds by enabling useful provisions to be enacted at Westminster,
subject to the consent of the Scottish Parliament, when a Scottish
legislative vehicle is feasible.
7. When there is a suggestion—from
the UK Government or the Scottish Executive—that there may
be a case for including relevant provisions in a UK Bill (ie provisions
which, under the Convention, would require the consent of the
Scottish Parliament), generally the merits and alternative options
are initially discussed between officials. As well as the relevant
policy officials, discussions will usually also involve those
in the Constitutional Policy Unit of the Scottish Executive, the
Constitutional Branch of the Scotland Office and the Office of
the Solicitor to the Advocate General ("OSAG").
8. From the Executive's side, once officials
have explored the options, advice will be put to the relevant
portfolio Ministers. If the portfolio Ministers conclude that
the appropriate option is to seek the consent of the Scottish
Parliament for legislation at Westminster, they will seek collective
Ministerial agreement—generally from the Cabinet Sub-Committee
on Legislation ("CSCL")—to the policy and to legislating
in a UK Bill subject to the Sewel Convention. Authorisation from
CSCL is the Executive's commitment to proposing a Legislative
Consent Motion in the Scottish Parliament in due course, and is
communicated to the UK Government.
NEW SCOTTISH
PARLIAMENT PROCEDURES
9. The Scottish Parliament's procedures
for dealing with proposals under the Sewel Convention are now
largely enshrined in its Standing Orders. This formalises the
previously informal system of dealing with Sewel Motions. The
Standing Orders now refer to these Motions as "Legislative
Consent Motions" and the explanatory memorandums which are
now required (these were previously provided by the Executive
on a voluntary basis) are to be called "Legislative Consent
Memorandums".
10. Under the new Standing Orders, the Scottish
Executive must provide the Scottish Parliament with a Memorandum
on every Bill introduced at Westminster which contains relevant
provisions. This Memorandum must be provided within two weeks
of the Bill's introduction. This rule applies whether or not the
Executive intends to lodge a Legislative Consent Motion on the
Bill in question. Discussions between the UK Government and the
Scottish Executive should take place well in advance of a Bill's
introduction which means that it should be possible, in most cases,
to achieve this target.
11. Once the Memorandum has been lodged
in the Scottish Parliament, it will be referred to the Business
Bureau who will allocate it to a lead Committee for consideration
and to any secondary Committees deemed appropriate. Where the
relevant provisions will confer on the Scottish Ministers powers
to make subordinate legislation, the Memorandum will also be referred
to the Subordinate Legislation Committee ("SLC"). The
SLC and any secondary Committee(s) may choose to make a report
to the lead Committee. The lead Committee will then consider the
issue and make a report to the Parliament.
12. Once the lead Committee has reported,
five working days must elapse before the Legislative Consent Motion
may be lodged in the Parliament, to give Members time to consider
the report. The Parliament will then vote on the Motion in the
Chamber. The vote will, on occasion, be preceded by a debate.
13. The Procedures Committee also made recommendations,
that were not subsequently included in the Standing Orders, but
which the Executive was happy to accept. For example, the Committee
recommended that, wherever possible, the Executive should write
to the Presiding Officer and all MSPs following the Queen's Speech
to outline which of the Bills in the UK Government's legislative
programme are likely to result in a Legislative Consent Motion
coming forward from the Executive. However, it was acknowledged
that it would not always be clear at the time of the Queen's Speech
which Bills will give rise to a Legislative Consent Motion as
much of the detailed policy is often worked out at a later stage.
On such Bills, the Executive agreed that, once the position had
become clear, the relevant Executive Minister would write to the
relevant Committee convener informing him/her of the intention
to bring forward a Legislative Consent Motion.
14. It is clear from these new procedures
that quite some lead in time is required to ensure that all the
procedures can be followed correctly and to ensure that the Scottish
Parliament has sufficient time and information to come to an informed
decision on the issues before it.
WESTMINSTER PROCEDURES
15. The Scottish Executive and the UK Government
already work closely together to ensure the smooth running of
the Sewel Convention. This includes day-to-day discussions on
particular Bills and particular policies but also includes educational
events, such as the successful seminars held following the last
two Queen's Speeches. These events were hosted by the Scotland
Office and included input from Scottish Executive and Scotland
Office Ministers and officials. They were extremely well attended
and were well received by the Whitehall Bill Teams and Scottish
Executive officials represented. Scottish Executive and Scotland
Office officials regularly give talks at Bill Team and other training
events to stress the importance of considering devolution issues
early in policy development and Ministers talk regularly to each
other about these issues.
16. The Scottish Executive was pleased to
note that one of the terms of reference of the Scottish Affairs
Committee's inquiry would be to consider the possible changes
to Westminster procedures promulgated by the Procedures Committee
of the Scottish Parliament in its recent report on the operation
of the Sewel Convention.
17. The Procedures Committee made a number
of suggestions for the approach that might be taken at Westminster:
— It suggested that Bills at Westminster
that were subject to the Sewel Convention might be tagged in some
way so that MPs (particularly Scottish MPs) would be aware that
the Bill contained provisions subject to the Sewel Convention.
— It proposed that Explanatory Notes
to a Bill might contain a standard section on the Sewel Convention
which outlined which particular clauses of the Bill would be subject
to the consent of the Scottish Parliament. It was also suggested
that the Explanatory Notes that were reprinted for the Bill beginning
its progress in the Second House could include details of the
Scottish Parliament's resolution agreeing or otherwise to the
provisions subject to the Sewel Convention.
— It proposed a formal mechanism, perhaps
between the Presiding Officer and the Speaker of the House of
Commons and the Lord Chancellor, to notify the UK Parliament of
the decision of the Scottish Parliament when it voted on a Legislative
Consent Motion.
The Scottish Executive supports the aims of
these suggestions, while at the same time fully appreciating that
the feasibility and practical value of introducing these (or other)
procedural innovations at Westminster is a matter for the UK Parliament
and UK Government. Indeed, it is with that in mind that the Executive
particularly welcomes the fact and the timing of the Scottish
Affairs Committee's current inquiry.
CONCLUSION
18. The effect of the Sewel Convention is
twofold. It enshrines what amounts to a "self-denying ordinance"
that the sovereign Westminster Parliament will not normally legislate
with regard to devolved matters in Scotland which are the province
of the Scottish Parliament. However, at the same time it has the
flexibility to provide a mechanism which enables provisions on
relevant matters to be included in Westminster Bills with the
agreement of both administrations and both Parliaments.
19. In the Executive's view the Convention
is a useful and important aspect of the devolution settlement
which operates to the benefit of the people of Scotland. In effect,
it allows Scotland to have the best of both legislative worlds
at Westminster and at Holyrood: without it, the stark choice would
be to do without worthwhile legislation or to put aside our own
legislative priorities to make room for a separate Scottish Bill.
But it is important to keep the scope and the scale of the Convention
in perspective. Legislative Consent Motions almost invariably
relate only to limited provisions in a Westminster Bill, and are
subject to the express agreement of the Scottish Parliament in
plenary, after proper scrutiny by the relevant Committee of the
Parliament. The operation of the Convention is therefore open
and transparent. It fully reflects the Executive's accountability
to Parliament and the Parliament's legislative competence in respect
of devolved matters.
13 January 2006
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